The Rogak Report: 01 Jan 2008 (Part II) ** No Fault - Denials - Errors **
MISTAKES ON NF-10 WHICH ARE NEITHER 'BASIC' NOR 'NUMEROUS' ARE NOT FATAL
Delta Diagnostic Radiology, P.C. a/a/o Francisca Cheneyfield v. American Transit Insurance Co. 2007 NYSlipOp 52455(U) Decided on December 27, 2007 Appellate Term, Second Department Edited by Lawrence N. Rogak
In this no-fault lawsuit in Civil Court/Kings, plaintiff appealed from an order which denied plaintiff's motion for summary judgment and granted the insurer's motion for summary judgment.
"Plaintiff's motion for summary judgment was supported by an affirmation from plaintiff's counsel, an affidavit by a corporate officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff's corporate officer stated in a conclusory manner that the documents attached to plaintiff's motion papers were plaintiff's business records. Defendant cross-moved for summary judgment on the ground of
lack of medical necessity or, in the alternative, on the ground that the assignor was not injured in a covered accident. The court below denied plaintiff's motion on the ground that plaintiff failed to make a prima facie case because the affidavit executed by plaintiff's corporate officer was legally insufficient and granted defendant's cross motion for summary judgment due to plaintiff's failure to proffer evidence rebutting the peer review report annexed to defendant's cross motion."
"Inasmuch as the affidavit submitted by plaintiff's corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff's practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff's moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (Alvarez v Prospect Hosp., 68 NY2d 320 ; see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff's motion for summary judgment was properly denied."
"Plaintiff's contention that defendant was not entitled to summary judgment on its cross motion because the NF-10 denial form is fatally defective lacks merit. Inasmuch as defendant's omissions from the NF-10 denial form in this matter are neither 'basic' cf. Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, )[see footnote 1] nor 'numerous' (cf. Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [see footnote 2]), they do not render the denial form fatally defective."
Further, defendant's peer review report established prima facie that there was no medical necessity for the MRIs performed by plaintiff, which evidence was unrebutted. As a result, the court properly granted defendant's cross motion for summary judgment."
Comment: These footnotes should hopefully provide some guidance as to what constitutes "basic" or "numerous" errors in an NF-10:
1. In that case, the Court held, "we find that the defendant's... denial of claim, while timely, was nonetheless fatally defective in that it failed to include a number of basic items called for in the prescribed form."
2. The Court there held, "The denial of claim form issued by the defendant in the case at bar, even if timely, was fatally defective in that it omitted numerous items of requested information, and thus was incomplete.... Moreover, the denial of claim form incorrectly listed the injured party, John Watson, as the provider of the health services."